Citation Nr: 1330478
Decision Date: 09/23/13 Archive Date: 09/30/13
DOCKET NO. 08-07 881 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUE
Entitlement to service connection for right ear hearing loss.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
A. Nigam, Counsel
INTRODUCTION
The Veteran served on active duty from May 1969 to January 1972.
This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in St. Louis, Missouri, which denied service connection for tinnitus and declined to reopen a previously denied claim for bilateral hearing loss.
In a February 2010 decision, the Board reopened the Veteran's claim for service connection for bilateral hearing loss, and remanded the case to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC for additional development. In a September 2011 decision, the Board granted service connection for left ear hearing loss and tinnitus, but remanded the issue of right ear hearing loss for further development. In October 2012, the Board again remanded this matter further development, to include obtaining a VA medical examination and clarifying opinion to address the claim for a right ear hearing loss disability.
In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. No additional documents pertinent to the present appeal were revealed.
Unfortunately, the appeal must again be REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required.
REMAND
As noted in the September 2011 and October 2012 remands, the Veteran underwent an enlistment examination in January 1969. Puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
-5
NR
25
LEFT
-5
-5
-10
NR
10
These findings reflect some pre-existing hearing loss in the right ear at 4K Hz. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss).
In light of these findings, the Board remanded the claim in September 2011 and October 2012 for an opinion as to whether preexisting right ear hearing loss was aggravated by service.
The Veteran was afforded a VA examination in October 2011. The examiner reviewed the claims file, obtained a history from the Veteran, and conducted an examination. However, the examiner did not offer an opinion as to whether preexisting right ear hearing loss was aggravated by service. The examiner indicated that hearing thresholds were all less than 25 dB at enlistment, which was the benchmark for normal hearing. The examiner noted that there was no preexisting hearing loss. This opinion was not deemed adequate for VA rating purposes. First, the examiner incorrectly stated that all hearing thresholds were less than 25 dB at enlistment. In fact, the threshold for 4K Hz was 25 db. Second, the examiner incorrectly stated that 25 dB was the benchmark for normal hearing. Under the Hensley standard noted above, thresholds higher than 20 dB indicate some degree of hearing loss.
More recently, in December 2012 the Veteran was afforded a new VA examination. The examiner reviewed the claims file, obtained a history from the Veteran, and conducted an examination. However, yet again the examiner indicated that the Veteran had normal hearing on entrance and separation physicals, and failed to offer an opinion as to whether preexisting right ear heading loss was aggravated by service. Unfortunately, this opinion is still not adequate. The examiner noted that there was no significant decrease in hearing thresholds between entrance and separation physicals, and commented that there was no indication that the Veteran's hearing was worsened during his military service, but this opinion was based on a premise that the Veteran entered service with normal hearing. Accordingly, the December 2012 opinion is of diminished probative value, as it appears to be based on an inaccurate factual premise concerning the in-service clinical record. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet. App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background).
For these reasons, an additional opinion must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); Dyment v. West, 13 Vet. App. 141 (1999).
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should request a VA supplemental medical opinion by an appropriate examiner to determine the nature and etiology of any current right ear hearing loss disability.
A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review.
After reviewing the record, and considering the Veteran's contentions, the examiner should address the following questions:
(a) Whether it is at least as likely as not that the Veteran's pre-existing right ear hearing loss, shown on examination in January 1969, was aggravated beyond its normal progression during the Veteran's active service period? Acoustic trauma during service is conceded. If the examiner finds that the 25 decibel loss at 4000 Hertz in the right ear on the January 1969 induction examination does not represent hearing loss in the right ear that pre-existed the Veteran's service, a full and complete explanation must be provided for any finding that the Veteran had normal right ear hearing on service entrance.
(b) If the hearing loss in the right ear did not pre-exist service, is it at least as likely as not that any current right ear hearing loss disability is due to the conceded acoustic trauma sustained during the Veteran's military service or otherwise related to service?
The examiner should note, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection, and evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
The examiner should review the entire record, including the Veteran's service treatment records, post-service records, and lay testimony, and provide a complete rationale for all opinions offered. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason.
Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
Note: "Aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology.
2. Following completion of the foregoing, the RO/AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO must determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013).
3. After completion of the above and any additional development deemed necessary, the RO/AMC must review the issue on appeal. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).